El Dorado County District Attorney to be Suspended? - Editorial

According to this standard, the DA Vern Pierson should be suspended from office without pay or benefits, forthwith. In a “Good for the Goose is Good for the Gander” scenario, it looks that if the standard being proffered by Vern Pierson and county Auditor Joe Harn’s good friend John McGuinness would have our District Attorney Vern Pierson suspended from office even before the the Nutting trail began.

Cris Alarcon | 2014-05-18

PLACERVILLE, CA -- Quickly following Ray Nutting’s exoneration of criminal charges related to official duties that would have removed him from office, KFBK commentator former Sac County Sheriff John McGinness opined that Ray Nutting should be removed from office for government code section 1770.1(h). We look at the government code and the idea that Nutting will be removed so it can be independently examined.

In a “Good for the Goose is Good for the Gander” scenario, it looks that if the standard being proffered by Vern Pierson and county Auditor Joe Harn’s good friend John McGuinness would have our District Attorney Vern Pierson suspended from office even before the the Nutting trail began.

Although neither Auditor Joe harn or radio talk show host John McGinness are lawyers, McGinness told listeners that he thought that Nutting would be removed from office upon sentencing on June 6th. Additionally, that he would be suspended forthright based on government code section 1770.1(h). It was clear that McGinness did not know what charges Nutting was found guilty of, but he did say that he did not believe that the jurors would follow the judge’s instructions.

Ray Nutting was not found guilty of any of the felony charges originally filed by the DA but was found guilty of misdemeanor charges of obtaining bail money improperly after the charges had been filed. McGinness spoke of government code 1770.1(h) which reads:

1770 (h) "(h) His or her conviction of a felony or of any offense involving a violation of his or her official duties. An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered. For purposes of this subdivision, "trial court judgment" means a judgment by the trial court either sentencing the officer or otherwise upholding and implementing the plea, verdict, or finding."

This code is unclear in a number of ways. It is unclear if it means “a felony or of any offense” (related to official duties). Or if it means (Any) Felony, or any offense related to official duties. Several known cases have pondered this exact question about the indistinct meaning of this code section due to its vagueness caused by indistinct grammar usage. But in every one of those cases, the court has avoided opining on the matter due to the case already involving an elected accused of a felony offense related to their official duties, making the issue a moot point, or one for the academics.

As an aside, we do find a specific provision in the FPPC code addressing a misdemeanor conviction and its affect on the officeholder. California law prohibits any person who has been convicted of a misdemeanor violation of the Political Reform Act from running for any elective office or lobbying for a period of four years following the date of the conviction. But the provision does not refer to code section 1770 and does not include suspension or removal from office.

Because Nutting is not now convicted or charged with any felony, it is only a question of committing any offense involving a violation of his or her official duties. This becomes much more clouded as it has never been applied in that manner before. A Nexis/Lexis search of California cases going back over 100 years was not able to find any cases where an elected official was forced from office for violating anything other than a Felony related to their official duties.

An ongoing case in San Diego county is now dealing with this very question. Two school board members are being challenged to vacate their office for a misdemeanor pleading. The case has listed unnamed “experts” that have commented that because the violations fall under the jurisdiction of the FPPC that they are de facto violations of the school board member’s official duties. Therefore, the plea of the board members to a misdemeanor has triggered the “any offense involving a violation of his or her official duties” section of the code and brings the “office becomes vacant on the happening of any of the following events [subsection 1770.1(h)] before the expiration of the term” into play.

Here is where our own District Attorney comes into the picture. According to this standard, the DA Vern Pierson should be suspended from office without pay or benefits, forthwith. Earlier this year the FPPC issued a finding that upheld a complaint by a citizen of the county that Pierson violated the FPPC regulations when he wrote a check to himself out of his campaign account. As this “finding” by the FPPC would meet the standard set forth by the unnamed “experts” and the radio personality, John McGinness, our DA Vern Pierson should have been removed from office even before the Nutting trial began.

But the DA has not been removed from office. Nor have hundreds, or even thousands of other elected officials that have made FPPC violations in California. Under such a broad interpretation of code 1770, even a ticket for a dead taillight on the way to a meeting would force elected officeholder out of their office forthwith!

Any reasonable person see this interpretation as absurd. Anyone considering that the very legislators that wrote this law would be subjected to its draconian standard forcing them from office at the most minor infraction or finding of accidental error, would think they never intended that kind of interpretation.

Here the question has turned to what is an “official duty” of the elected board members. Look again at this code and see that there are three parts: felony conviction; any offense involving a violation; official duties. We have looked at the first two, but what exactly is an “Official Duty” if it is not just any FPPC violation?

Another Nexis/Lexis search of California cases that involve “official duties” is likewise vague and undefined by court action in the context of an elected official losing office. Government code does cover some specifics like bribery and extortion, but never does it talk about bail monies. The place where the law does define “official duties” is labor law and it is almost exclusively defined as the “job description.” As every type of job is distinct, it would be impossible for the courts to define every job’s official duties, or even for an eager agency writer to accomplish this ridiculous exercise. That may be the reason the courts have never attempted to do so.

Now we have narrowed down the definition of official duty to the actual job’s description of the job’s duties. In the case of our DA, that description is in the El Dorado County Charter, as is the duties of the Supervisors of the Board of Supervisors. When we look at the DA’s official duties, we find nothing about adhering to the FPPC’s regulations. This may be why the DA has never been removed from office as his FPPC violation was not part of his “official duties.”

When we look at a Supervisor's’ job duties, we find nothing about how, or from whom, they can, or can not, borrow money for bail. It would seem that Nutting is in the same boat as Pierson in this aspect, but it also appears that a double standard is being applied to the two officeholders.

Perhaps it is not a double standard, but simply a difference of opinion made by two different lawyers. It turns out the opinions among lawyers are even more varied that the bazaar diet of Andrew Zimmerman. I experienced this just a few years ago when I was Chairman of the El Dorado County Charter Review Committee. I had interviewed a number of lawyers in the County Counsel’s office about the meaning and application of the Brown Act. I spoke with both Lou Green, the former head of the Counsel’s office, and to Ed Knapp, before he ascended to the top post in the office. Both had detailed, but significantly differing, interpretations of the Act and its application in our county. It turns out this is much more common than one would expect.

Legal opinions are just that, opinions. Until they are adjudicated, they are just a person’s opinions. After adjudication, they become a court precedent, but even they can be changed by subsequent, or higher, courts by overturning, overruling, or re-interpreting of the opinion.

We have not heard Ed Knapp’s interpretation of this code, but it is doubtful that he is willing to try to set a precedent that has not been established in over 100 years of jurisprudence, especially in a county where Judicial Activism and precedent setting legal opinions are sure to be challenged, will not be fondly viewed by taxpayers and might even lead to his job being part of the fallout of the overturning of any creative new interpretations that would have far reaching implications for many sitting lawmakers.

This writer, the radio personality that brought it up, and the unnamed “experts” in San Diego may have slept at a Holiday Inn recently but we are not experts in this field of law. Even the County Counsel has admitted that this field of law is beyond his expertise by hiring outside counsel from San Francisco to opine. Although the taxpayers often object to this kind of use of money, it is common when the legal issue is out of the regular area of a county counsel’s office.

Following the Radio talk show that talked about Nutting being removed under section 1770, an agenda item appeared as a closed session item described as:

Conference with Legal Counsel - Initiation of Litigation pursuant to Government Code Section 54956.9(d)(4). Title:Legal Issues Resulting from Jury Verdicts in The People of the State of California vs. Raymond James Nutting; El Dorado Superior Court Docket Nos. P13CRF0294 and P13CRM0744.

This is a closed session meeting held when: If the local agency in the litigation is pending....

(d) For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:...

(4) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.

We have confirmed that a real expert will be weighing in on this issue of law in the form of a brief to the Board of Supervisors for this closed session meeting on Tuesday.

His name is Charles H. Bell, Jr.

Mr. Bell is senior partner of Bell, McAndrews & Hiltachk, LLP. He has practiced political and election law exclusively since 1980. He is one of the leading experts on the California Political Reform Act and federal and state election laws. Mr. Bell was the founding Chairman of the California Political Attorneys Association.

Mr. Bell is General Counsel to the California Republican Party, serving in that position from 1982 to 1993 and 1999 to the present. He has provided legal advice and representation to candidates and officeholders including Governor Arnold Schwarzenegger, former Governor Pete Wilson, former Attorney General Dan Lungren, former Secretary of State Bill Jones, former Governor George Deukmejian, former U.S. Senator John Seymour, numerous Congressional, State Senate and Assembly leaders, state and national political party and legislative caucus organizations. He also has served as counsel to political action committees, lobbyists, corporations, trade associations and state and local ballot measure committees.

Mr. Bell is the immediate past President of the Republican National Lawyers Association and currently serves as Vice Chairman of The Federalist Society's free speech and election law practice group. He served as an advisor to the California Election Law Recodification Project, as a member of the transition team of Secretary of State Bill Jones, as an advisor to political parties in the 1994 South African election, and as a consultant to the American Bar Association's committee on election laws.

Mr. Bell is a graduate of Stanford University and Stanford Law School.

Now we shall have to wait until the BOS comes out from closed session on Tuesday to see if they will issue any report about this meeting.

Comments

"Thanks for the great article comparing Ray and Vern. Consider another comparing Ray and Joe. Ray's charges have no substance relevant to application of code section 1770.1(h) whereas Joe's career is riddled with substantive instances that do relate to 1770.1(h)."

This note is being sent as a personal appeal to you, a Member of the Board of Supervisors, to exercise restraint with regard to tomorrow's meeting to consider the removal of Ray Nutting from his position as District 2 Supervisor.
The misdemeanor findings against Supervisor Nutting do not meet the intent of government code 1770.1(h). If this code section is applied in this case, the standard would be lowered to the point of have an unintended and undesirable destabilizing effect on the ability of local government to function.
I therefore urge you to refrain from any vote to remove Supervisor Nutting from office.
Respectfully,
Richard Barb